Article
The Inalienable Rights Of Hawaii's Condominium Owners
An open letter to state legislators, industry officials and members of condo boards.
By Marcia Kimura May 8, 2024 · 5 min read
Community Voice
1) Most, if not all, condo owners are first Americans who have absolute constitutional guarantees of freedoms, including the rights to own property and freedom of speech that cannot be eradicated or diminished by lesser quasi governments, special interest groups, industry leaders or government officials, no matter their financial status or supposed influence on governing authorities.
2) Freedom of speech rights means that we rightfully cannot be silenced, or our efforts toward just resolution of our grievances stifled by anyone, including attorneys hired by associations, however veiled their intentions are.
As we look forward to additional years of decision making for legislation, I would like to offer an overview of common sense rights condominium owners can rightfully assert. I hope that you will affix these to your sensibilities relevant to owner efforts to initiate legislation.
We as owners have the absolute right to openly criticize, question, disagree with or hold suspect the actions, policies, beliefs and accusations of anyone in management, or the boards, and their attorneys, without experiencing resulting retaliation by these parties, or arbitrary demands for reimbursement of legal fees from owners, when boards hire these attorneys, unless legal fee reimbursement requirement results from collection of delinquent common dues payments, written consent to payment applicable to each separate matter from the individual owners, or court orders obtained by boards for each separate matter.
3) All elected, contracted and hired management parties in associations are charged with the responsibility of representing the best interests of the owners, collectively. Owners have the express right to hold accountable or suspect the actions of these responsible parties, who may or may not be licensed.
Owners of condos are increasingly speaking out for their rights. Pictured are construction workers at a condominium near Ala Moana Center on Kapiolani Boulevard. (Cory Lum/Civil Beat/2021)
4) As owners, we have the right of timely access to information and documentation of transactions, contracts, policies and statements generated by either management, owners — individually or collectively — contractors and other parties associated with operations, without undue alteration of these materials before receipt by owners.
5) Management and boards are required to reasonably carry out their fiduciary responsibilities while maintaining a policy of transparency and truthfulness in their intentions, before implementing their decisions with irreversible actions. These include establishment of adequate reserve funds that prevent sudden and devastating emergency assessments to individual owners.
Owners have the right to expect that malfunctioning common elements, or association-related damages to individual units be repaired on a timely basis, without the expenses billed exclusively to affected owners.
6) Sustained individual condominium home ownership is to be protected with every legal means available to owners. Owners have the right to an effective means of resolving their grievances and disputes with governing parties, through an impartial agent such as an ombudsman who will receive, investigate and make recommendations for resolution of these matters.
7) Management personnel and boards cannot cause owners financial or psychological duress carried out with the intention, veiled or overt, to deprive them of ownership of their homes in circumstances other than default of association dues. Foreclosure procedures must include proper and timely communication of intended actions to owners subject to the process.
8) As the Fair Debt and Collections Practices Act includes condo attorneys in its definition of collectors to whom the act applies, these attorneys are bound by all its provisions, including the requirement that total collection fees shall not exceed 25% of the total debt collection amounts.
9) The burden of proof for all charges of alleged violations of each condominium’s governing documents is borne solely by the party initiating the violation claim and must be founded on irrefutable evidence consisting of testimonies of expert witnesses, testimonies of third-party eye witnesses not related to or associated with board members, or the accuser, reliable video or audio recordings, or documentation substantiating violations and excluding the sole statement or claim of violation by one party against another.
10) Association violations must be clearly stipulated as enforceable in governing documents, with a written schedule of the range of violation fines that are not subject to varied discretionary imposition by any and all board members, on a per case basis. Owners have the right of protection against selective enforcement of their associations’ codes, covenants and restrictions.
11) Owners have the right to pursue board action against any tenant, or other owner who is in violation of house rules, and a threat to the peaceful enjoyment of home units.
12) A clear, detailed and itemized explanation of all appropriations of the Condominium Education Trust Fund from the state’s Real Estate Branch and others with access to the funds, should be provided to any and all condominium owners requesting the report. Fund monies should not be used in lobbying actions against the efforts of condominium owners to secure legislation or other means of protection of their rights.
13) Owners have the right to participate in equitable board electoral processes without manipulation or misuse of proxies or other procedures that unfairly and illegally benefit management.
14) Legislators have the obligation and duty to incorporate the needs of their home-owning constituents, nearly half of whom own condominiums in this state, into proactive, protective and enforceable measures.
The ever-increasing percentage of condo home ownership makes it vitally important that legislation to protect the basic rights of owners be established and enforced. Only your continued commitment to these principles assures lasting peace and justice for all parties.
Source: https://www.civilbeat.org/2024/05/the-inalienable-rights-of-hawaiis-condominium-owners/#